The Unintended Consequences of "Stand Your Ground"

The unintended consequences spawned
by the vague and amorphous “Stand Your Ground” law passed in 2005 by the
Florida legislature are not lost on state prosecutors. Palm Beach State
Attorney Michael Michael McAuliffe told me, via e-mail:

Our office has been acutely aware
of the unintended consequences of applying the “Stand your ground” law.Although we have not experienced any
pre-trial dismissals of cases due to this law, we have been forced to spend
significant time and resources litigating defense motions which, in essence,
seek court ordered immunity for defendants charged with violent crimes.We believe that these are almost always
issues for a jury comprised of members of the community to decide.

In 2007, our office prosecuted
defendant Robert Smiley for first-degree murder with a firearm. The sole
disputed issue was self-defense. The defense attorney filed a motion for
pre-trial dismissal based on the “Stand Your Ground” law. In that case, the 4th
DCA ruled that the issue of duty to retreat should be decided by a jury because
the “Stand Your Ground” law was not in effect at the time the case was
commenced. Our office moved forward with the prosecution. Subsequently, the
factual matters of self-defense were hotly debated between the jury members and
they were unable to reach a verdict. Our office chose to re-try the case. Again, a jury was unable to reach a verdict.
(Ultimately the defendant entered a guilty to manslaughter pursuant to a plea
agreement). The confusion that can
surround the “Stand Your Ground” law makes for difficult hurdles even in cases
where we have violent, aggressive conduct.
The law has the great potential to be misapplied and could well protect
violent criminals in specific cases.

Palm Beach homicide prosecutor Kirk
Volker of the Major Violent Crimes Division, with similar reservations, wrote:

I have had two trials (a
manslaughter case and a first degree murder case) where the "stand your
ground" law was argued by the defense and where special jury instructions
were created for its use.In each case,
the state had to argue that it was not reasonable for the defendant to believe
that the deadly force used by the defendant was necessary in order to prevent
death or great bodily harm to himself, or to prevent the commission of a
forcible felony.It is much easier to
nullify this defense if it can be shown that the defendant was engaged in an
unlawful activity at the time that he used deadly force, in which case, it can
be argued that he is not entitled to the "stand your ground"
instruction.In the manslaughter case,
there was unlawful activity.In the
murder case, there was not.

If any other contemporaneous crime
has been committed by the defendant, including possession of a firearm by a
convicted felon, it should be charged in the same charging document.Otherwise, the state will waive the right to
argue that the defendant was engaged in unlawful activity at the time in
question, and thus, not entitled to the benefit of the stand your ground
instruction.

In a close case, the new
instruction can be very difficult for the state to overcome. In the two cases that I tried, the defendants
went way beyond what was reasonable under the circumstances, in their use of
deadly force, and so, the instruction did not end up being too difficult for
the state to overcome.